Opinion: Asafo”Niue’s Constitutional Review Must Be More Transparent “

Fuimaono Dylan Asafo is a law lecturer at the University of Auckland, he holds a Masters of Laws from Harvard University and Masters of Laws (First Class Honours) from the University of Auckland. BCN news asked for his legal expertise and to provide an opinion on the work of the Fono Ekepule to review the 1974 constitution.

In December last year, the Fono Ekepule passed a motion for there to be a review of Niue’s Constitution.

This constitutional review is a critical important opportunity for the people of Niue to finally discuss the problems in Niuean politics for decades. It is also a rare chance to bring everyone in Niue together to explore and create solutions to these problems as a country.

Because constitutional review’s are so important and rare, they must be transparent and open to all. This not only means that all Niuean citizens must be given every opportunity to participate in the review. It also means any documents and reports about the review must be publicly available (digital and hard copy) and written in a clear, detailed and thorough manner.

Unfortunately, it appears that the constitutional review committee is wasting this great opportunity for Niue.

The great danger of wasting this opportunity is that same the same problems will continue to burden Niue for generations and that Niue will not be able to reach its full potential as a nation.

To provide some background, the Constitutional Review Committee is chaired by Member of Parliament (MP) O’love Jacobsen and contains by 16 members in total – including 14 MPs and 2 advisors, former Minister Hon. Billy Talagi and lawyer Sina Hekau.

In February 2021, the Committee made a call for public submissions to allow the people of Niue to send in their thoughts on what needs to change by the closing date of May 3 2021.

The Committee received 36 public submissions in total. The Committee then held 2 meetings on May 6 2021 and May 17 2021 to consider the 36 public submissions and discuss the review process going forward.

At these meetings, the Committee agreed that there are 9 Articles in the Constitution that represent the most significant issues raised by the submissions that need priority review. The Committee produced a short 4 page report outlining these 9 priorities and MP O’love Jacobsen tabled the report in the the Fono Ekepule in June 2021.

Sadly, there are 8 major issues with the Committee’s report and how the Committee have handled the review so far:

1. The report does not describe what members of the public said in the 36 submissions;

• The report does not describe what the Committee members thought of the 36 submissions;

• The report describes each of the 9 priorities in very little detail. Each priority has 2-3 sentences in bullet points followed by a 1 sentence recommendation or statement of advice.

• The report’s recommendations decline the 2 ideas for change that Premier Dalton Tagelagi suggested (increasing the number of cabinet ministers and changing the title of Premier to PM) without a good explanation.

• The report was not read out when the report was tabled during the Fono in June 2021 to allow the public listening to the live broadcast to know what these 9 priorities Articles were.

• There report was barely discussed by the Fono at the June 2021 meeting.

• Even though MP O’love Jacobsen told MPs take the report and to discuss it further with their constituencies – there was no guidance about how these discussions should happen.

• The Committee have not given enough time for more public consultation. Common Roll MP Terry Coe and MP for Lakepa, John Opo Tiakia, both argued that the people need more time to discuss these priority recommendations from the Committee.

These issues mean that the Committee transparent and open to all.

In my view, there are 3 key steps the Committee must take to address these issues.

1. Rewrite the report, ensuring that it contains:
2. A full explanation of the Constitution and its history for all Niueans to understand;
3. A full explanation of why a Constitutional Review was called and is necessary;
4. A full summary of the ideas raised in the 36 public submissions
5. A full summary of the views of the Committee on these 36 submissions;
6. A full explanation of why and how the Committee selected 9 priorities;
7. A full summary of the different options that the Committee explored when considering its recommendations and advice on these 9 priorities; and
8. A full explanation of why the Committee have made the recommendations and advice it has.

• Release the improved report to the public – ensuring that it is summarised in good detail on the radio, as well as making it available online and making copies that can be distributed throughout the country.

• Provide a detailed timeline for public consultations, ensuring that there is:
• An extension on the time for public consultations to a date that satisfies concerned MPs and other members of the public; and
• A time set for another detailed report to be released with a full summary of the concerns the public have raised.

Undoubtedly, the above three steps will require a lot more time and resources than the Committee and Fono anticipated. However, it is absolutely essential that the Fono dedicate enough time and resources to this review because the future prosperity and political advancement of Niue is at stake.

If there are not enough resources for the review to be up to standard, then it is imperative that the Fono seek funding from New Zealand. In my view, the government of New Zealand owes a duty to Niue to provide these resources – not only due to the fact that Niue is in Free Association with New Zealand, but because New Zealand helped to resource and shape the creation of Niue’s Constitution in 1974 which is causing Niue problems now. 

Furthermore, it is imperative that the Committee and Fono seek further advice and support from Niuean and other Pacific lawyers and scholars overseas, who would be all too willing to help the people of Niue further articulate and realise their aspirations as a country.

To give an example of the depth and detail that the Committee’s rewritten report needs to go into, I have explored how the significant constitutional issue of how constituency boundaries for elections are created per Article 16 of the Constitution.

Disappointingly, the Committee’s 4 page report did not explore the issue of constituency boundaries and stated that the only issue with Article 16 was that it gives “too many members of parliament” and simply recommending for the Fono to: “Maintain current provision as people will not support reduction”.

This is an unacceptable comment on the problems with Article 16, and any concern about the number of MPs should also be weighed against so a more thorough exploration of the issue is provided below.

Issue 1: The Issue of Constituency Boundaries

The reason why this constituency boundaries for general elections a major issue that requires review and reform was outlined by Niuean political sciences scholar, Salote Talagi, who argued last year that:

“…a review of Niue’s electoral and legislative systems is needed. The current system has been in place for over forty years, and circumstances have changed in Niue over that time. One aspect that requires review is constituency boundaries. As The villages of Toi, Vaiea, Namukulu, and Hikutavake each have fewer than forty registered voters, but their results are weighted the same as those of the villages of Alofi South, Alofi North, and Hakupu, each of which has more than one hundred voters. These imbalances need to be revised, and, as I understand, numerous attempts to do so thus far have amounted to nothing.”

The specific issue, or problem, that Talagi raises here is that people in villages with smaller numbers of eligible voters are able to have more political power in the Niue Assembly (also known as the Fono or parliament) than people in villages with higher numbers of eligible voters. In other words, a vote in Toi, Vaiea, Namukulu, and Hikutavake is more powerful and impactful than a vote in Alofi South,Alofi North, and Hakupu. This means that people in Alofi South, Alofi North, and Hakupu are significantly less likely and able to have their voices heard and values represented in the Assembly (when it makes laws and important decisions for the country) than people in Toi, Vaiea, Namukulu, and Hikutavak are.

Legal scholar, Professor Anthony Angelo, has attributed this problem to the significant population loss Niue has suffered since 1974 when the Constitution was adopted, remarking: “The population loss of Niue since 1974 has greatly affected the operation of this electoral system. Some of the village constituencies have very few voters and there are often very close contests for seats”.

This problem of imbalanced constituencies is one that which many countries face in their own unique ways, including the United States, Australia, New Zealand, Samoa and the Cook Islands. However, given Niue’s particularly small population of less than 1700 people, and the vast population range across Niue’s villages (ranging from 11 people in Namukulu to 427 people in Alofi South, based on the 2017 census) the implications of this problem are unfortunately more pronounced and concerning.

The Current Constitutional Provisions on Constituency Boundaries

Currently, the relevant constitutional provisions for determining constituency boundaries are in Article 16 of the Niue Constitution. An image of Article 16 is featured below:

These provisions provide 2 key considerations for the Electoral Commission (and the Electoral Commission) to follow when determining constituency boundaries:

1. Each of the 14 villages in Niue must be represented in the “Niue Assembly” (also known as the Fono or or parliament) by 1 member each (per the clear and unequivocal wording of Article 16(2)(b)(i) and Article 16(3)(a) above); and

• When determining (or redetermining) the boundaries for each village constituency for elections, the Electoral Commission, should, so “far as practicable” and while having “due regard to local community interest”, do so in accordance with the principle that a village constituency should not have a “substantially greater or smaller” number of “electors” (meaning eligible and enrolled voters) than the number any other village constituency.

• In other words, when determining (or redetermining) the boundaries for each village constituency prior to an election, the Electoral Commission should try their best to determine village constituency boundaries in a way that prevents one village constituency from have a significantly larger or smaller number of eligible voters than any other village constituency.
• It is important to note that this provision means that the Electoral Commission is not strictly required to ensure this  – but when they are determining village constituency boundaries, they should try to make each village constituency similar or reasonably comparable in size as “far as it is practicable” and after considering (but not necessarily following) the “local community interest”.

Rationale behind Article 16

The Constitution of Niue was drafted by Robert Quentin Quentin-Baxter, a Professor of Constitutional Law and Jurisprudence from New Zealand, in close consultation with the Niue Assembly. While the Constitution was passed by the parliament of New Zealand in 1974 as the Niue Constitution Act 1974, the Constitution gains its supreme authority by being accepted and adopted by the Niue Assembly and the people of Niue, not from New Zealand’s parliament.

 In regards to the specific issue of village constituencies, Professor Quentin-Baxter explained Article 16 as follows:

“The Assembly is composed of one representative from each of the fourteen villages of Niue. This does not ensure that the vote of each elector is of equal value, or that suitable candidates have an equal chance to gain election; for the villages are widely different in size. On the other hand, the village as a unit is still of great importance to the Niuean people, and there can be no doubt that they regard the equal representation of the villages as the most acceptable basis for their legislature.”

Here, we have acknowledgement that full equality among voters is not possible because villages are widely different in size. Despite this inequality, Professor Quentin-Baxter and the Niue Assembly in the early 1970s insisted that all of the 14 villages be represented because of the great importance of every village to Niue, and that the Niuean people felt that the “most acceptable option” is to ensure that no village is left out of the Niue Assembly even if there is inequality.

Analysis of Article 16

In my view,  Article 16 provides a difficult tension, if not a paradox, that is impossible for the Electoral Commission to negotiate in practice.

If the Electoral Commission was ever to try make changes to constituency boundaries so that each of the 14 village constituencies are not “substantially greater or smaller than each other”, the only course of action that Article 16 gives them is the power to redefine village geographical boundaries (a process known as redistribution). Specifically, they would need to extend the boundaries of a number of smaller village constituencies into larger village constituencies so that voters from neighbouring larger constituencies can be a part of that smaller village constituency for the purposes of election and electoral representation in the Assembly. This would allow all 14 village constituencies to represented by 1 member in the Assembly as required by the Constitution.

However, this option is and would be very hard, if not impossible, for the Electoral Commission to carry out for a number of reasons, including, but not limited to:

1. Determining (or redetermining) village constituency boundaries in this way would be impossible because geographically in Niue, smaller village constituencies are clustered together in the North and the substantially larger constituencies are located and clustered together in the South; and

• Even if it is somehow possible to redistribute boundaries for a two or a few village constituencies, the Electoral Commission would effectively be requiring members of a village (i.e. a larger village constituency) to vote in another village constituency, as well as asking or requiring another village to allow and accept people from outside their village to vote as a part of their village. To put it simply, asking requiring people to change villages that they have been living in (for assumably their whole lives, and that their family has lived in for generations) for the sake of an election runs into all sorts issues. As a result, such actions are infeasible in practive for the Electoral Commission as they will be required to think about what is “practicable” and in the “local community interest”.

Some Options for Reform

To help encourage further conversations and ideas for reform, I have explored just some of the options for reform below. More options can definitely be imagined and explored by the people of Niue and members of the Assembly involved in the constitutional review.

Every option for reform will inevitably have their own set of advantages and disadvantages, and it is for the people of Niue to weigh these up and decide what option works best for them.

Option One: Eliminate village constituencies and create district constituencies

• This option would mean that Niue will be divided into different ‘districts’ that will become constituencies.
• These districts can be formed by combining multiple smaller villages together (i.e. combining maybe 3-5 of the neighbouring villages with low number of voters into 1 district) and in the case of villages with more eligible voters, possibly dividing them into smaller districts (i.e. dividing Alofi South into 3 or 4 districts and Hakupu into 2 districts).
• Another Pacific Island nation that organises constituencies by districts made up of different villages is Samoa.
• In terms of how these districts can be formalised, there are a few options for Niue to consider. In Samoa, district constituencies are specified and laid down by politicians members of the assembly in legislation. However, in larger Western countries, like New Zealand and Australia, independent electoral officers are given the power to determine and redetermine constituency boundaries so that voter populations in constituencies are not more than 5% smaller and larger than each other.
• Advantages of this district constituency option include:
  • It better ensures equality among voters in Niue than the current system as each district constituency are more likely to have eligible voter numbers that are not “substantially greater or smaller than each other”.
  • The number of seats in the Niue Assembly are likely to stay the same/not increase above 20 – which is the main concern expressed in the Committee’s 4-page report.
• Disadvantages of this option include:
  • There will be no guarantee that all 14 villages will be represented in the Niue Assembly – therefore going against the “great importance” of each village being represented (which Professor Quentin-Baxter and the Niue Assembly gave priority to when drafting the Constitution in the early 1970s). Northern villages with smaller numbers of eligible voters will be particularly disadvantaged given that they are clustered together so will are likely to form 2-3 districts, whereas Southern villages with larger numbers of eligible voters will be guaranteed representation.
  • Any change (increase or decrease) in the number of seats to be elected from constituencies (14) could mean a change in the number of common roll seats (which may be seen as unattractive or disadvantageous for Niue) if the total number of seats remains at 20 (i.e. if there need to 16 constituency seats, this could mean 4 common roll seats than the current 6 to keep the total number at 20). Or there could be an increase in the total number of seats beyond 20 to compensate for any increase in constituencies and allow 6 common roll seats to remain.

Option Two: Increase the number of seats in the Niue Assembly to give villages with larger populations (of eligible voters) multiple seats

• This option would mean that all 14 villages are represented in the Niue Assembly, while making sure that village constituencies with larger populations (of eligible voters, rather than total population)will have more than 1 seat.
• There are a number of potential methods for determining or calculating how many seats villages with larger populations should get. For example, it can be determined by comparing the villages with the lowest and highest proportion of eligible voters in the village (i.e. if a village has 5 times more voters, they get 5 more seats).
• Or if this is unattractive (and it is likely to be due to the great range in village population numbers), there can be an incremental system where it could be that villages with 1-50 eligible voters get 1 seat; villages with 51-100 eligible voters get 2 seats; villages with 101-150 eligible voters get 3 seats and villages with 151-200 get 4 seats, and villages with 201-250 (or above) get 5 seats. This could result in an Niue Assembly of 30 or more seats.
• Other Pacific Island nations that have similar systems include Tonga which organises constituencies by islands/island groups with the larger main island of Tongatapu having 7 constituencies.
• Advantages of this option include:
  • It better ensures equality among voters in Niue than the current system; and
  • It allows all 14 villages to be represented in the Niue Assembly.
• Disadvantages of this option include:
  • Increasing the number of seats in the Niue Assembly, even by small number (i.e. to a total of 25 or 30), can be seen as an unattractive option given Niue‘s very small total population – something raised in the Committee’s 4-page report. The increase in the number of seats under this option could potentially be seen as so significant, that the common roll seats need to be eliminated as a result, so that all seats become representative seats (like in Samoa) which could be seen as unattractive and harmful in Niue’s specific circumstances and context.
  • None of the methods for determining or calculating how many seats villages with larger eligible voter numbers should get are perfect or ideal, because any method can be seen as too arbitrary and unfair due to the great range of eligible voter numbers across the 14 villages in Niue. To illustrate, there is a maximum of 11 eligible voters in Namukulu (11 is its total population as per the 2017 census, no Namukulu voters were counted in the 2020 election as the seat was uncontested) compared to a minimum of 212 eligible voters from Alofi South (based on the number of voters in the 2020 general election). The numbers of potential eligible voters in the 14 villages are also not spread evenly enough to make any potential increment system particularly ideal or attractive.

Option Three: Change the distribution of representative and common roll seats in the Assembly

• This option could involve having an equal number (or even majority of) Assembly members be non-partisan members elected on a common roll (i.e. 10 or more) and have the remaining member seats (i.e. 10 or less) be for representative members of two main districts determined by Niue’s two historical tribal areas (Motu and Tafiti).
• The representative seats can be distributed among the two areas in a number of ways. For example, seats can be distributed according to population numbers (either total or eligible voters) for each tribal area. So, if there are 10 representative seats in total, 7 seats can be for Tafiti and 3 seats can be for Motu). Alternatively, each tribal area can have the same number of seats (5 each).
• In terms of how these different districts can be formalised, the options from Samoa and New Zealand/Australia (as described above in Option One) can be considered for Niue.
• Advantages of this option include:
  • It could be seen as the fairest option because half (i.e. 10 or possibly more) of the seats are common roll seats, which are free for all eligible candidates from all 14 villages to vote and stand for election in.
  • Having more common roll seats could also be seen as attractive, given that in the 2020 general election, there was a record number of candidates (26) standing for the 6 common roll seats.
  • For the other half of the seats that are representative seats (i.e. 10 or possibly less) between the two districts, all 14 villages will have more of a ‘equal’ chance of being represented in the Assembly and equality among voters in Niue will still better ensured than it is in the current system – even there being no guarantee all 14 villages will be represented.
• Disadvantages of this option include:
  • There will be no guarantee that all 14 villages will be represented in the Niue Assembly – therefore going against the “great importance” of each village being represented (which Professor Quentin-Baxter and the Niue Assembly gave priority to when drafting the Constitution in the early 1970s).

Option Five: Decrease the number of members in the Assembly and make them all representative seats

• This option involves decreasing the number of members in the Assembly to less than 20 and make them all representative seats according to village constituencies (i.e. 14) or district constituencies.
• Advantages of this option include:
  • It reduces the number of members in the Assembly, which is the main concern expressed in the Committee’s 4-page report.
  • It reduces the number of members in the Assembly, which is the main concern expressed in the Committee’s 4-page report.
  • If done according to village constituencies, all 14 villages will be represented in the Assembly.
  • If done according to district constituencies, there is likely to be more equality among voters in Niue than the current system as each district constituency are more likely to have eligible voter numbers that are not “substantially greater or smaller than each other”.
• Disadvantages of this option include:
• If done according to village constituencies, the issue of voter inequality and imbalanced constituencies will continue, if not increase as there will be no common roll seats.
• If done according to district constituencies, there is no guarantee that there will be no guarantee that all 14 villages will be represented in the Assembly – therefore going against the “great importance” of each village being represented.

Option Six: Decrease the number of seats and make them all seats common roll seats

• This option involves decreasing the number of members in the Assembly to less than 20 and make them all district constituencies.

• Advantages of this option include:
  • It decreases the number of members in the Assembly, which is the main concern expressed in the Committee’s 4-page report.
  • If done according to village constituencies, there is a guarantee all 14 villages will be represented in the Assembly.
  • If done according to district constituencies, there is likely to be more equality among voters in Niue than the current system as each district constituency are more likely to have eligible voter numbers that are not “substantially greater or smaller than each other”.
• Disadvantages of this option include:
• If done according to village constituencies, the issue of voter inequality and imbalanced constituencies will continue, if not increase as there will be no common roll seats to allow candidates from larger districts being elected.
• If done according to district constituencies, there is no guarantee that all 14 villages will be represented in the Assembly – therefore going against the “great importance” of each village being represented.

Moving Forward: Potential Obstacles to Reform

In addition to all options for reform having their own advantages and disadvantages, any reform to Article 16 could potentially be controversial and subject to opposition by those who benefit from the great imbalances in constituency power and the inequality it creates among voters in Niue.

In other words, members of the Assembly who do represent smaller village constituencies could possibly oppose any reform or changes, making it difficult if not impossible to pass.

These concerns are not necessarily unfounded or selfish. An option for reform that does not guarantee their representation in the Assembly (like Option One and Three above) can be devastating for villages already struggling to survive. Even Option Two, which will guarantee representation of all 14 villages in the Assembly, will result in a reduction of the power of these smaller villages in the Niue Assembly by giving villages with more eligible voters more seats, which could still see their interests underserved in the Niue Assembly’s governance and law making.

All of this emphasises the importance of a transparent and open constitutional review that is capable of initiating an informed nationwide conversation in Niue on this issue and all other issues. , not only by members of the Niue Assembly, but by every citizen who is concerned about fair and democratic elections in Niue for future generations to come.